Supreme Court flags 'one-person structure' in Shiv Sena's constitution

The Supreme Court has raised significant concerns over the Shiv Sena's amended constitution, questioning its democratic principles and suggesting it has become 'virtually a one-person structure' amidst the ongoing dispute between the Uddhav Thackeray and Eknath Shinde factions.

Observing that democratic principles should not be confined to institutions, the Supreme Court on Thursday questioned the amended constitution of the Shiv Sena, saying it appeared to have made the party "virtually a one-person structure".

The top court, while continuing with the final hearing on the pleas of the Uddhav Thackeray-led faction against the Election Commission's decision recognising the Eknath Shinde-led faction as the "real Shiv Sena", said when institutions are expected to safeguard democratic values, political parties too must be examined on whether they function democratically.

Concerns Over Party Democracy

"Originally, the party (Shiv Sena) Constitution was founded on democratic principles. Subsequently, it was amended and became virtually a one-person structure," a bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and V Mohana said.

Senior advocate Kapil Sibal, appearing for the Uddhav Thackeray-led faction, said, "The real question is that this is not within the Election Commission's remit."

"When we speak of democratic principles and institutions safeguarding democratic values, the question naturally arises whether a political party is itself expected to function democratically," the CJI said.

Sibal said he appreciated the point that the parties should also function democratically.

"But there is a distinction. Constitutional institutions perform constitutional functions, whereas political parties perform political functions.

"The standard of institutional integrity is necessarily much higher when a constitutional authority exercises its powers.

"A political decision can always be corrected. But a decision of the Election Commission, once taken in these circumstances, often cannot practically be undone," Sibal said.

At the highest, the poll authority could have asked the party to amend its constitution, he said.

"We know of several political parties that have not held organisational elections for years," he added.

"Has the (Election) Commission ever held that their constitutions are undemocratic and therefore refused to recognise them?

"That is precisely the reasoning by which it refused to rely upon the 2018 constitution here," the senior lawyer said.

Ultimately, institutional integrity lies at the heart of a democratic system and its absence destroys the very foundations of democracy, he said.

EC's Mandate Questioned

Justice Bagchi said the poll body itself eloquently quoted the importance of institutional integrity and quoted Dr BR Ambedkar.

"It repeats Dr Ambedkar's observations and also refers to the view that defection is a constitutional sin. Today, however, it appears to have become a badge of honour rather than a sin... Dr Ambedkar had said that however good a Constitution may be, it is bound to turn out bad if those who are called upon to work it happen to be bad," he said.

This is exactly our case, Sibal said.

The senior lawyer launched a scathing attack on the EC's methodology, saying it exceeded its legal mandate by invalidating the party's internal constitution to favour legislative strength over organisational support.

The crux of Sibal's argument centred on the EC's decision to ignore the Shiv Sena's 2018 constitution. The poll body had previously claimed the 2018 document was not on its records, reverting instead to a 1999 version to justify its ruling.

"The EC has no adjudicatory power to pronounce upon the validity of a party constitution," Sibal said. "Under Section 29A and its own guidelines, the Commission cannot hold a party constitution invalid. By assuming a jurisdiction it does not possess, the Commission decided this dispute on an impermissible basis," he said.

He said due to this, a faction led by some legislators became the political party.

Organisational vs Legislative Strength

Sibal further said that both factions had accepted and operated under the 2018 constitution for years.

He presented data showing that while the Shinde faction held the majority in the legislature, the Thackeray faction maintained an "overwhelming majority" in the organisational wing, with support from 19.4 lakh primary members compared to Shinde's 4.48 lakh.

"If the EC decides who the political party is before disqualification is settled, the horse has already bolted from the stable," Sibal said.

He said that the Shinde faction's numbers grew from 31 to 56 then only after Eknath Shinde was sworn in as chief minister.

"People in power are like a magnet. Power attracts people. If disqualification proceedings are allowed to linger, this expansion is the inevitable consequence," he said.

The Thackeray faction said the EC's decision allowed a "legislature faction" to become the "political party" solely through numbers, effectively rendering the electoral process a farce.

Sibal said if a majority of MLAs can "upstage" the parent organisation, it sets a dangerous precedent where governments can be changed through "manipulation and defection" rather than the will of the voters.

He said that whether a political party's constitution is sufficiently democratic falls outside the Election Commission's jurisdiction.

The hearing will resume on August 11.